sion a certain deed, executed by the father of the plaintiff, now deceased, conveying said real property in fee to one J. K., who is defendant's grantor. IV. That plaintiff claims title to said real property by descent from his said father, and in no other way. V. That deponent gave plaintiff's attorney reasonable notice to produce said deed on the trial, and further duly and seasonably subpoenaed the plaintiff's attorney to attend the trial, and bring with him the said deed. VI. That prior to the service of said notice and subpoena, the plaintiff's attorney delivered said deed to the plaintiff, who thereupon deposited the same with L. M., the counsel of plaintiff, residing in VII. That at the trial of this action deponent learned for the first time that said plaintiff's attorney had parted with said deed. VIII. That up to the time he was put upon the stand, the plaintiff's attorney entirely concealed from deponent the fact that said deed was out of his possession. IX. That deponent was entirely taken by surprise by the failure of the plaintiff's attorney to produce said deed; and thereupon applied to the judge presiding for a postponement of the trial [or, for leave to withdraw a juror for that cause], which was denied." X. That on a new trial deponent can, as he believes, obtain the production of said deed, or if not, can prove the contents thereof by the testimony of J. K. XI. That there has been no opportunity since the trial of this cause, to notice a motion for a new trial, until the Special Term to be held at [Jurat.] on the day of 19 .6 [Annex affidavit of proposed witness if the production of testimony of witnesses is relied on.] 5 Carlisle v. Barnes, 102 App. Div. 582, 92 N. Y. Supp. 824; Harvey v. Fargo, 99 App. Div. 599, 91 N. Y. Supp. 84; Rubenfeld v. Rabiner, 33 App. Div. 374, 54 N. Y. Supp. 68. Compare Seligman v. Sevin, 46 Misc. 58, 91 N. Y. Supp. 395; Merritt v. Mayfield, 89 App. Div. 470, 85 N. Y. Supp. 801; Glendening . Canary, 5 6 A party desiring a new trial on the ground of surprise must move promptly. Rapelye v. Prince, 4 Hill, 119; Snowhill v. Knapp, 7 N. Y. Leg. Obs. 15. FORM No. 1651. Affidavit to move for a new trial on the ground of newly-discovered evidence.7 [Title of court and action.] [Venue.] Y. Z., being duly sworn, says: 7 This motion must be made on affidavits, and it is the better opinion that it may be entertained in the discretion of the judge, on affidavits, without making a case, if no objection is taken. McIver v. Hallen, 50 App. Div. 441, 64 N. Y. Supp. 26. It cannot be heard on affidavits alone, if proper objection is made. Boyd v. Boyd, 11 Misc. 357, 32 N. Y. Supp. 295, 24 Civ. Pro. Rep. 230. 1. In respect to granting new trials on the grounds of newly-discovered evidence, the general rules are: The testimony must have been discovered since the former trial. 2. It must be such as could not have been obtained, with reasonable diligence, on the former trial. [Or, in place of these two rules, that the moving party was misled and induced to refrain from giving certain proof because of excusable mistake, or by some act or admission of the adversary on which he had the right to rely. (See Matter of Banks, 108 App. Div. 181.)] 3. It must be so material to the issue that a different result may well be expected upon the new trial. 4. It must go to the merits of the case, and not to impeach the testimony of a former witness. 5. It must not be "cumulative," by which term is meant additional evidence to support a point controverted on the trial, and which is of the same character with evidence already produced. (This last rule is gradually being abrogated. See Schnitzler v. Oriental, etc., Co., 47 Misc. 356, 93 N. Y. Supp. 1119; Keister v. Rankin, 34 App. Div. 288, 54 N. Y. Supp. 274; Kring v. N. Y. C. & H. R. R. R. Co., 45 App. Div. 373, 60 N. Y. Supp. 1114.) As to the application of these rules, see People v. Patrick, 182 N. Y. 131; O'Hara v. Brooklyn Heights R. Co., 102 App. Div. 398, 92 N. Y. Supp. 777; Todd v. Eighmie, 10 App. Div. 142, 41 N. Y. Supp. 1013; Kring v. in this action. N. Y. C. & H. R. R. R. Co., 45 App. Div. 373, 60 N. Y. Supp. 1114; Merrick v. Britton, 26 Ark. 496; Wallace v. Tumlin, 42 Geo. 462. Whether or not a new trial will be granted because of the after-discovered perjury of a witness, is the subject of many conflicting decisions, although of late there has seemed to be a tendency on the part of the courts to award a new trial upon that ground with considerable freedom, especially when coupled with a fraud on the court. It is, of course, necessary that the moving papers shall present a case raising a very strong presumption of wilfully false testimony having been given at the trial, and it also must appear that such testimony had a most important bearing upon the result of the trial; the attack on the testimony cannot be founded simply upon the general character of the witness, and as in all such applications - the facts showing the perjured character of the testimony must have been newly discovered. The following cases may be consulted, with advantage, as to rules applied in such applications. Chapman v. Del., L. & W. R. Co., 102 App. Div. 176, 92 N. Y. Supp. 304; Chamberlain v. Olean St. Ry. Co., 100 App. Div. 509, 90 N. Y. Supp. 815; O'Hara v. Brooklyn Heights R. Co., 102 App. Div. 398, 92 N. Y. Supp. 777; Bennett v. Riley, 82 App. Div. 639, 81 N. Y. Supp. 882; Serwer v. Serwer, 71 App. Div. 415, 75 N. Y. Supp. 842; Nugent v. Met. St. Ry. Co., 46 App. Div. 105, 61 N. Y. Supp. 476, 7 Anno. Cas. 193; Corley v. Ñ. Y. & Harlem R. Co., 12 App. Div. 409, 42 N. Y. Supp. 941. As to the exceptional character of cases turning upon questions of disputed personal identity, see Jackson v. Crosby, 12 Johns. 354; Jackson v. Kinney, 14 id. 186; Jackson v. Hooker, 5 Cow. 207. 19 of for II. That this action was tried on the day of , at a [Trial Term of this court], held in and for the county in said county. at III. That said trial resulted in a verdict for the [plaintiff] dollars. IV. That since the said trial, and on the day of deponent has discovered for the first time that he could have proved by one J. K., who resides at the following facts: that at the time of the representations testified to by L. M., upon the trial of this action, he was present; that the representations actually made by the [defendant] at that interview were that he believed that N. O. was good, but that he would not be security for him; that the safety of the loan would depend upon his business, and whether it continued good; that he believed the business was profitable, and would pay well if judiciously managed; that the [defendant] did not say that N. O. was perfectly good, or that the money would certainly be repaid, or that N. O. was doing a business second to none in the world, nor anything to that effect.9 V. [Allege facts which excuse non-production of this witness at the trial.]9a I. That he is, and was at the time of the conversation between L. M. and the defendant, set forth in the annexed affidavit of the defendant, a clerk in the store of the defendant. 8 Even though the action has been tried several times, the motion will be granted in a proper case. Beers v. West Side R. Co., 101 App. Div. 308, 91 N. Y. Supp. 957. But an exceptionally strong record must be presented. Hagen v. N. Y. C. & H. R. R. R. Co., 100 App. Div. 218, 91 N. Y. Supp. 912. 9 The affidavit to move on the ground of newly-discovered evidence must disclose the facts newly discov ered, and should be corroborated by the positive affidavit of the witness relied on to prove the facts alleged on the new trial. See next Form and note. 9a See Rule No. 2 as stated in note 7, supra. 10 The corroborating affidavits of the witnesses should be produced, stating their ability to testify to the new facts claimed; or, the non-production of the affidavits should be II. That at the said conversation so referred to the [defendant] made the representations set forth in the foregoing affidavit within deponent's hearing. III. That from the [defendant's] manner of speaking of the suit, deponent supposed there was no danger of a recovery against him, and he therefore did not communicate what he knew until after the verdict was rendered. [Jurat.] FORM No. 1653. [Signature.] Notice of motion for new trial (not on minutes)- on case, or affidavit, or [Title of court and action.] on the day of both.11 19 at Please take notice, that on the case herein, as settled and filed, and of which a copy is herewith served [and on the pleadings or if after judgment, say: and on the judgment-roll- and on the annexed affidavit of A. B., verified on the day of 19 12], the undersigned will move this court 13 at a Special Term1 to be held at the County Court House in the city of o'clock A. M., or as soon thereafter as counsel can be heard, for an order setting aside the verdict [and vacating the judgment entered] herein on day of 19 and granting a new trial of the action [or, of the several questions settled for trial by jury or may specify part of such questions], on the following grounds" [specifying them as thus:] 1. Upon the exceptions. 2. Because of newly-discovered evidence. 3. Because the verdict is contrary to the evidence. 4. For irregularity in that [specifying what]. 5. On the ground of misdirection in the charge [stating the excused. Armstrong Mfg. Co. v. Thompson, 88 N. Y. Supp. 151; Cheever r. Scottish Un., etc., Ins. Co., 86 App. Div. 331, 83 N. Y. Supp. 732. Either the witness should not have been present at the trial, or must show that he intentionally concealed his knowledge, in order to relieve moving party from presumption of lack of diligence. See Bridenbecker t. Bridenbecker, 75 App. Div. 6, 77 N. Y. Supp. 802. 11 N. Y. Code Civ. Pro., § 1002. 12 As to what grounds must be supported by affidavit, see Forms 1648, 1649, and notes. 13 If the motion is not on the minutes, and is on the merits, the order can only be made by the court, even in the first district. N. Y. Code Civ. Pro., § 770. As to what are "the merits," see Metrop. R. R. Co. v. Moore, 121 U. S. 558. 14A motion to set aside verdict because of juror's misconduct must be made at Special Term; but if heard and decided at trial term without objection, will be considered on appeal. Werner v. Int. St. Ry. Co., 99 App. Div. 592, 91 N. Y. Supp. 111. So, any motion not based on error in fact or law occurring at the trial, must be made at Special Term, and may be heard before a justice other than the one presiding at the trial. Smith v. Ledgerwood Mfg. Co., 60 App. Div. 467, 69 N. Y. Supp. 975; Fleischman v. Samuel, 18 App. Div. 97, 45 N. Y. Supp. 404. 15 N. Y. Gen. Rule No. 31. what], and that the same has resulted in injustice;16 and for such other relief as may be just, [with costs of this motion].18 [Date, signature, addresses, etc., as in Form 1656.] FORM No. 1654. Order granting motion (other than upon the minutes) for new trial. [Title of action.] The plaintiff [or, defendant] having moved for a new trial [state ground, as thus:] upon the exceptions taken during the trial [if other grounds were relied upon, specify them distinctly19]; Now, on reading and filing [proceed with the recitals as in other cases; see last Form and Form 820, p. 1174]: * ORDERED, 1. That the verdict herein [and judgment entered thereon] be and hereby is [are] set aside and a new trial of this action [or if of special questions indicate what] be and the same hereby is granted, on condition20 that the plaintiff pay to the defendant all costs of the action after notice of trial,21 within twenty days after the costs shall have been adjusted upon notice by the clerk of county; if such costs are not paid by plaintiff as herein provided, the motion to set aside the verdict and for a new trial is denied with costs.22 2. That upon payment of said costs as herein provided [and unless an appeal from this order be taken within the time allowed by law] the cause is to be restored to the calendar and set down for trial upon days' notice. 23 This order is granted upon the ground [s] [specifying them, unless the motion was made upon exceptions solely].2 Enter: [signature of judge by initials of name and title.] [Serve certified copy.] 16 Sustainable even though no exception was taken. Gossler v. Lissberger, 19 Wkly. Dig. 429. Otherwise perhaps if this ground is not specified. Callahan v. Bancroft, 28 Hun, 584. 17 If leave to amend is to be asked, it had better be specified (Anderson v. Market Natl. Bk., 19 Wkly. Dig. 373, 375), and the proposed amended pleading submitted. 18 See notes to next Form. 19 N. Y. Gen. Rule No. 31. 20 Costs cannot be imposed when the verdict is set aside on the ground of a mistrial. Terriberry v. Mathot, 110 App. Div. 370, 97 N. Y. Supp. 20. 21 See note 90 to Form 1645; Newschloss v. Wittner, 86 N. Y. Supp. 211; Bailey v. Park, 5 Hun, 41; North v. Sargeant, 14 Abb. Pr. 223. 22 Young v. Stine, 77 Hun, 395, 28 N. Y. Supp. 881. The costs are full costs, not motion costs. Koeppel v. Koeppel, 50 Misc. 619, and cases cited. 23 N. Y. Gen. Rule No. 31; Pharis v. Gere, 107 N. Y. 231; Hinman v. Stillwell, 34 Hun, 178. |